YouTube Wins Viacom Copyright Lawsuit

UPDATE: In connection with the summary judgment ruling today in its litigation against Google and YouTube, Viacom Inc made the following statement:

“We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions. We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible. After years of delay, this decision gives us the opportunity to have the Appellate Court address these critical issues on an accelerated basis. We look forward to the next stage of the process.” In connection with the judgment, Viacom’s Executive Vice President, General Counsel and Secretary, Michael Fricklas, issued a statement about the decision that can be found at: http://news.viacom.com/news/Pages/summaryjudgment.aspx

Statement posted just now by Kent Walker, Vice President and General Counsel of Google:

Today, the court granted our motion for summary judgment in Viacom’s lawsuit with YouTube. This means that the court has decided that YouTube is protected by the safe harbor of the Digital Millenium Copyright Act (DMCA) against claims of copyright infringement. The decision follows established judicial consensus that online services like YouTube are protected when they work cooperatively with copyright holders to help them manage their rights online.

This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world.

23 Comments

…and let’s not forget the two words that need to be remembered … FAIR USE!

Now with this rulling, will YOUTUBE do more to defend “fair use”?

Lukeandlaura • on Jun 23, 2010 2:05 pm

Fair Use doesn’t really work here. I don’t believe that the repurposing of copy written clips and posting them on YouTube comes under the umbrella of research or education. The Fair Use rights are pretty limited.

I’m not making a case for Viacom, I think it can fall under a promotional umbrella that would protect YouTube. But being someone who deals with clip clearance, this wouldn’t make a case for fair use – on a case by case MAYBE you could find a few here and there…

It’s tricky.

Nathan • on Jun 23, 2010 2:05 pm

But this is where you are wrong. The videos are used for educational purposes only, and are therefore concidered fair use.

Anonymous • on Jun 23, 2010 2:05 pm

This has nothing to do with fair use, this has to do with the DMCA safe harbor provisions that Youtube is protected under

Matt Mulhern • on Jun 23, 2010 2:05 pm

Wow. Well, I gotta tell you, at least Nikki is printing something that has relevance to the subject matter that made her a star.

I really think the issue needs to be simplified, or the whole entertainment community is lost. I mean, if you can’t protect intellectual property and, at least keep MOST of the fish you catch, to use a bad metaphor, what the hell are creative artists going to do?

“Yeah, I made this movie, and, um, I took a loan out against my house to pay for it, and, uh, it took 8 years to get made, and um, we won the Grand Prize at Sundance, and my nephew just called me and said “Hey Uncle Bob – congratulations! You won – and the movie is AWESOME!”

“Thanks little Timmy. Hey, uh, where did you see the movie?”

“On YouTube! It’s already uploaded!”

Get it?

Thanks, United States Justice system. Look – YouTube has been crapping their pants that eventually the courts would do to them what they did to Napster, that is, SIMPLIFY the argument down to:

“o.k. – so, what you’re saying is, you provide an intermediary server, where one kid can log on, and download a song, or 50 songs, from another kid?”

And Shawn Fanning said “Yes, your honor, that’s basically it.”

And the court said “You understand that’s stealing?”

And Shawn Fanning said “Yup.”

It’s amazing to me that a court would STILL not get that. Until and unless it becomes illegal for YouTube to allow copyrighted material to be put up, creative artists are done.

I mean, am I missing something?

Sheryl Crow has to tour her skinny ass off all year long to make the money. The days of Steely Dan just releasing albums and not touring are done, cause kids can get the tunes for free, despite the Napster ruling.

Here’s a hypothetical. A family of four were vacationing in Quebec, Canada last week, and the story of the “First Nation” as Canada calls it’s indigenous people – America calling them Native Americans – was so compelling at a French/American history exhibit they saw, the parents said to the two teenage sons, “hey, you know, there is a great, great movie called “Black Robe” (directed by Bruce Beresford) that tells the story of a French Jesuit priest, who, in the 1700’s, travels to Quebec and is sent on a mission to the Mohawk Nation to “save their souls” and the incredible hardships he endures and the amazing reality of the different tribes in that area at that time. We gotta rent it. You guys will love it.”

And four hours later, they’re all huddled together on a hotel bed, watching “Black Robe” cause their younger son found it on YouTube in 5 minutes. For free.

Get it?

Is YouTube “working with content providers to protect copyright law?”

Sure they are. The same way we are erecting fences at the border with Mexico to keep out “illegal aliens.”

Is YouTube essentially freed from that effort by this decision, and only has to put up a cursory attempt to pacify the ruling?

Yup.

And who doesn’t get paid?

Us.

This is the heart of the matter for actors, directors, writers – basically ANYONE who shares in the profit participation of ANYTHING creative that finds it’s way onto the internet, or, originates there and expects to get paid for it’s reuse.

And the current government of the two existing actors unions – SAG and AFTRA – both have their heads completely up their asses, as well as the entire industry.

And this ruling shows the courts still don’t understand the meaning of theft of intellectual property.

Which begs the question – where is this all going, and how will creative artists get paid? It can’t be by solely MUCH larger up-front fees, because content won’t get made at those prices.

Things: movies, CD’s, Books, etc., are currently heading to “you get five samolains now, and if this thing becomes a hit, you get 500 samolians,” which is fine, sort of, if the distributor is forced to be honest, by law, in their accounting, and pay the fair share of profits due profit participants. If not, what compels the artist?

You need to make a living. You need to get paid off your work for re-use. It needs to be made ILLEGAL for ANYONE NOT TO PAY TO VIEW YOUR WORK.

Hellooooo?

Mark • on Jun 23, 2010 2:05 pm

So you’re against libraries, then?

rev3 • on Jun 23, 2010 2:05 pm

public libraries are non-profit

mj • on Jun 23, 2010 2:05 pm

I think your one-liner comment is a bit unfair. Maybe Matt ended on a summary point that didn’t express his argument fully but I’d love to hear you back your question up. Because I think it’s an interesting question. Don’t leave us hanging…

Waiting for the collapse • on Jun 23, 2010 2:05 pm

surely even you can see the difference between a lending library with a waiting list to read the latest bestseller vs. instant access via torrents and youtube

unless of course you’re an abject moron

tom cruise at his jerry maguire best • on Jun 23, 2010 2:05 pm

It sounds as if your actual complaint is that the people who own the copyrights are not doing enough to make them available to people at a fee. The fact is, study after study has shown that availability *kills* piracy. People watch ‘Black Robe’ for free on Youtube because the company doesn’t have people looking for it (to report it to Youtube when it will be taken down) because they don’t think it’s worth it to them. The problem is that the company is being short-sighted. If they made the movie available, people would pay for it because it’s more convenient than hoping that Youtube might have something that is high quality enough to be worth watching.

Henry • on Jun 23, 2010 2:05 pm

@ Matt Mulhern
Improve your business model along with better protecting your rights. If you can get paid for your work, then you need to find another profession.

someone who knows • on Jun 23, 2010 2:05 pm

The argument that this is ultimately protecting artists is the biggest corporate scam ever. Viacom doesn’t pay out to it’s artists because the contracts that they shove down people’s throats are designed to ensure that nothing gets paid (the back end). So for Viacom or anyone to argue that this is a fight for the ‘little’ guy is just plain bullshit. Corporations have lobbied for and gotten their copyright laws extended way beyond what copyright was ever intended for (it was created by Thomas Jefferson to last 15 years – now it’s up to 75 years) and they have hid behind this argument that they are protecting artists while virulently negotiating against the unions for royalties, using highly creative accounting to prove they haven’t made their initial investment back (i.e. Batman has still not made a profit according to WB) and generally being not artist friendly.

Here is the bottom line in this case – Viacom thought they could make 1 billion dollars by suing Google. That was the business plan. And not one dime of that billion would ever see it’s way into the hands of the artists. That would just be bad business.

Glen Hartigan • on Jun 23, 2010 2:05 pm

I agree. This kind of thing is unsustainable…It will slowly cripple the creative market til we all are awash in mediocrity and “Pop” music sure bets. It will make the good stuff only available to the very rich instead of keeping it available to the masses at a reasonable price because the financial incentive of the big bad record companies is taken away. People don’t stop to think that the “Big Bad” record companies help artists do what they do best, create!!

HH • on Jun 23, 2010 2:05 pm

This ruling has absolutely nothing to do with fair use; it is based entirely on 17 U.S.C. 512 (the Digital Millennium Copyright Act’s safe harbor provision for internet service providers that host content posted by third parties).

YouTube actually won because they do not defend “fair use” — rather, they strictly adhere to the notice and take down provisions of the Copyright Act.

Youtube has a thing for spinning judgements and stating opinion as fact.

Anyone who knows about web-video in those days, knows that youtube did, in the way Napstar did, assist people in breaking copyright, and, that it was part of the design strategy.

Kind regards,

Shakir Razak

Sundance Kid • on Jun 23, 2010 2:05 pm

As a filmmaker, this ruling doesn’t really scare me. I think you have to protect your own property if you’re willing to get into this business.

What I do know is that the internet, although a method of piracy, is an amazing avenue for advertising. I just recently made a film that had a small distributor but over 800 people on youtube ripped the trailer off of itunes and it got more plays on other channels than the distributers main channel.

The “first film” or Sundance film shouldn’t be a cash cow for anyone involved in financing or creating the film. It’s about how much of a fanbase you gain so you can hopefully go on to make more films. Look at the Duplass Brothers. Their first film made $200,000. Their second made even less (around $150,000 ). But on both films they did the press and started a major fanbase.

The same could be said about Rian Johnson and now Shane Carruth in the micro-budget “sell the house” type of filmmaking. And Cyrus will now be the indie darling of the summer and Jeff Who Lives At Home and Table 19 and Looper will be hits.

Anonymous • on Jun 23, 2010 2:05 pm

youtube is claiming “fair use” and making a profit from someone else’s content

nothing fair about that

thing is most content providers have acknowledge the site’s use of their content as free advertising

and have seen increased sales for their product as a consequence or should i say RE$ULT

seems like everybody wins…but viacom for some reason

rev3 • on Jun 23, 2010 2:05 pm

youtube claims “fair use” but generates income from other’s content

nothing fair about that

but this “fair use” has come to be looked upon as free advertising for these content providers
which has been shown to generate increased sales of their products

seems everyone wins

….but viacom

Mark • on Jun 23, 2010 2:05 pm

“YouTube has been crapping their pants…”

Of course they have. In your mind. YouTube is owned by Google. You know, that little search engine company up in Mountain View. Like big studios, Google has a little coin to spend on armies of lawyers. Google also seems to have a least a passing familiarity with litigation.

Court ruling or not, the reality is that the genie is out of the bottle. Ever try to take something off the internet? Good luck with that. The US government can’t even stop Wikileaks, arguably more important Spider Man, Part 10 or whatever crap sequel you’re selling this summer. The economic model has to change or the movie industry will join the music industry. I”m not advocating for Google or movie piracy, just trying to bring you back to reality.

Lumiere • on Jun 23, 2010 2:05 pm

Wait, Wait, is the same Viacom company whose marketing team were putting video up on you tube, then watching Viacom legal pushing google to have all Viacom stuff taken off, then having the marketing guys put it back on? Yeah, thought so.

Matt Mulhern • on Jun 23, 2010 2:05 pm

First: Libraries. Yes, I am in favor of them. But ask John Grisham if he’s in favor of mass illegal downloads of his books onto Kindle.

Get it?

And Sundance – The writer/director (if one and the same, if not, separately) will be taking Lipitor by the time they see back end on those films, if ever.

The deals made at Sundance are not kind to the CREATORS of content. They CAN be kind to the DISTRIBUTORS who buy them, and then, ONLY if the film explodes.

Otherwise the indie business is mainly about eeking out a profit after a year or two on foreign deals, cause you only spent a week or two in theaters (IF you beat 100 to one odds and GET a theatrical release), and now, why buy or rent the DVD, when you can get it from YouTube or any of ten other places on the internet, free?

If you are interested in YOUR voice as a filmmaker, good luck. I mean that, I’ve made two, and been to Sundance, and gotten releases on both films, and, I broke even, and the films broke even.

The filmmaker who wants to then hustle something like that into directing some Hollywood cow pattie for a sizable (by that guy or woman’s standards) up-front fee? Cool. Go hustle your ass off.

But Hollywood has the makers of their OWN shit on a VERY short tether, and you look at the commercial track records of the Wes Andersons and the Noah Baumbachs, both of whose movies I have enjoyed, and you see, the clock is ticking for them. “Bring home the bacon or go get financing from the electricians union, or a Finnish aluminum can-maker.”

Case in point: the other night, we: me, my wife, my two sons, paid to watch “Greenburg” on pay-per-view in a hotel on vacation.

I liked “The Squid and the Whale,” I found “Margot’s Wedding” unwatchable. I liked “Greenberg.” In fact, I liked it a lot. The rest of my family? Ran screaming from the room after half an hour. Baumbach’s point of view is so specific, so HIS, (which I love) and they just couldn’t take an unlikable (at times REALLY unlikable) main character. Me? I sort of loved him. Stiller was funny, and totally believable in the role.

Is “Greenberg” going to break even or make money? I’d bet you the farm, no. Out of theaters before you blink, why rent the DVD when you can fire it up on YouTube for free, etc., etc.

Baumbach, because he has broken through to… something, probably got a decent upfront fee and MAYBE has a piece of the back-end. But, watch him or his attorney (who he is paying $300 an hour to track it down, unless his Uncle Maury does it pro bono) chase those little fuckers around for YEARS locking down Noah’s profits and actually GETTING them to him, IF there are any after recoupment.

I’m just saying, this is as old as dirt. You think Van Gough would have liked to sell a few paintings? Maybe not cut his ear off in frustration? Artists – true artists, not hacks looking for a pay-day, are a sensitive breed, and they rely on the kindness of strangers.

We, as creator of content, along with our brethren: actors, writers, directors, better get to understanding that, while they are smiling in our face, saying “I LOVED it!” they are slipping our wallet out of our back pockets.

You know, we COULD stand up for ourselves and make sure WE get paid first. SAME TIME as the distributor? Sure, the guy who paid for it (usually at Sundance, one or two private investors, or, you know, fifteen, and a loan from Chase), but, there’s this false narrative out there that the person who wrote the thing, directed the thing, you know MADE IT? Is further back in line.

That needs to be remedied. That’s all I’m saying.

Nathan • on Jun 23, 2010 2:05 pm

Exactly! The logos of Viacom are posted on YouTube for educational purpaces ony, and are therefore concidered fair use.

Susie • on Jun 23, 2010 2:05 pm

Movies on YouTube? Has an entire movie actually been placed on YouTube? Wait- has a movie studio lost money because of YouTube? If it weren’t for YouTube I wouldn’t even know about majority of the movies coming out as I don’t have cable. I think what needs to happen is some type of compromise between the internet and these big “real world” corporations who fear them. Just like changing Napster didn’t stop or scare off illegal downloads of music (I believe that’s still, uh, “a big problem”?) neither will trying to shut down or change YouTube. Instead of being scared of innovation, how about embrace it.

And if Sheryl Crow has to tour her skinny ass off who gives a fuck? That should be a job requirement! You don’t get to just pump out music. If I’m paying $20 or more to buy your CD and other crap, a little live performance (which I’m still paying for) would be much appreciated.